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Court to Decide State's Beach Access Issue

December 14, 1986|DAVID W. MYERS

Friend-of-the-court briefings will be filed Friday with the U.S. Supreme Court in a Ventura County case that could have a broad impact on California's coastal communities and might also affect key land-use issues in the nation's interior.

The case, Nollan vs. California Coastal Commission, involves the government's ability to demand that property owners allow the public access to their lands.

Plaintiffs James and Marilyn Nollan, owners of a beach-front lot in Ventura, had asked the Coastal Commission for a permit in 1982 to knock down a run-down, 521-square-foot bungalow on the site and erect a two-story, 2,464-square-foot home.

The commission said it would only grant the permit if the Nollans agreed to a deed restriction that would allow the public to have access to the beach in front of the property.

Public Access to Beach

The commission, formed in 1972, has the power to demand such "dedications" from owners who want to develop their beach-front property or make changes to existing structures. By doing so, the agency has tried to assure that the projects won't block the public's access to beaches.

The Nollans, however, claim that being forced to make such dedications in order to get a building permit violates the Fifth Amendment. That amendment forbids the taking of property for public use without just compensation.

Arguments in the case will begin early next year, and a ruling is expected by summer.

The high court's decision will have only statewide ramifications if the justices confine themselves to the merits of the Nollan case, most legal experts say.

But the ruling could have nationwide impact if the court chooses to examine the much broader issue of how much the government can demand from a builder before a project is approved.

Saved State Millions

"The real question is what kind of conditions can government agencies attach to the issuance of permits," Michael Berger, a prominent Santa Monica attorney who has been involved in similar cases, said in an interview.

Supporters of the government's ability to demand dedications say it has allowed the state to acquire millions of dollars worth of property for virtually nothing. Millions more have been made available to improve public property.

For example, plans for the sprawling, $125-million Colony at Mandalay Beach resort community in Oxnard were approved a few years ago only after the developers agreed to dedicate 36 acres of beach-front property, valued at $50 million, to the state.

The builders also spent $2 million on improvements, including the addition of a walkway, bike path and parking lot. Thousands of people now use the area daily.

Claim Unjust Taking

But many large developers--as well as families like the Nollans--complain that dedications are an unjust taking of their property. Commercial developers also note that the dedications tend to drive up the cost of their projects, and that those costs are usually passed along to people who buy homes in their developments or use on-site facilities, such as restaurants and hotels.

A wide-ranging decision in favor of the Nollans would certainly affect the Coastal Commission's operations. But it could also deal a severe blow to the growing number of municipalities across the nation that require builders to earmark portions of their land--or donate money--for public use before they can obtain a building permit.

For example, some local governments demand that developers set aside space in their projects for low- and moderate-income housing or reserve a portion of the property as undeveloped open space. Others require developers to build or fund child-care and transit facilities, parks and other items.

State courts usually have upheld such requirements, even when developers argue that their project alone won't increase the demand for public services. Judges have reasoned that the cumulative impact of the project, when combined with other developments, creates the demand.

'Worst-Case Scenario'

Cities and states may lose their ability to make such demands if the high court rules such actions are unconstitutional.

"In the worst-case scenario, the court would rule that the government has to pay owners for property that will be used by the public," says Jamee Jordan Patterson, a lawyer in the California Attorney General's office. "The government just doesn't have the money to pay for that land."

As a result, Patterson says, the government would have to raise taxes to buy property in the future, acquire less land for public use or raise builders' fees.

"It would be a no-win situation," she says.

One argument the government will present in its defense, Patterson says, is that requiring a developer to allow the public access to a portion of his land is a fair exchange for giving him the right to "burden" the community with more development and the resulting increase in traffic and the need for public services.

Owners Built House

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